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22 December 2020
In Airport Authority v Persons Obstructing the Proper Use of the Hong Kong International Airport, the High Court recently approved a novel order providing for service of various court documents on unnamed defendants by allowing the plaintiff to effect service by (among other means) using a quick response (QR) code. The QR code is contained in a notice that is to be exhibited securely at various conspicuous places at the airport and provides a link to the court documents posted in full on the plaintiff's website. The proceedings arose out of protests at the airport in 2019 and, given the background to the case and the high-profile nature of the proceedings, the court was satisfied that service of the court documents should reasonably be expected to come to the attention of the defendants. Hence, in the circumstances, an order for substituted service using (among other things) a QR code contained in notices displayed at the airport was justified.(1)
The plaintiff is the operator of the Hong Kong International Airport. In Summer 2019 there were several unlawful protests at the airport, which included some violence and resulted in criminal damage. Other protests were peaceful. These events made the international news at the time.
The plaintiff commenced court proceedings in order to obtain (among other things) injunctive relief to prevent the obstruction and interference caused by the protests at the airport. The original court orders allowed for substituted service of the injunction and court proceedings by displaying them securely at various conspicuous places in the airport and by publishing them on the plaintiff's website and in one English and one Chinese-language newspaper in Hong Kong.
The protests eventually abated. Unsurprisingly, no defendant came forward to accept service of the court proceedings and the plaintiff does not appear to have had an address for service for any of the defendants.
A time came when the plaintiff wanted to attempt service of its statement of claim (its formal pleading which ran to some 17 pages) and further documents on the defendants. The plaintiff proposed that service of its statement of claim, and any subsequent documents, be by way of substituted service using a combination of three means:
The court initially permitted substituted service but not with respect to the plaintiff's statement of claim. The court drew a distinction between, on the one hand, the plaintiff's statement of claim and, on the other hand, the other subsequent court documents – the court was of the view that, with respect to the latter, the plaintiff's proposed means of substituted service was sufficient. However, the court considered the statement of claim to be more important and, therefore, held that it should be served by other means – for example, by publication in one English and one Chinese-language newspaper and by being displayed in full at various locations across the whole airport island. That decision prioritised the importance of bringing the plaintiff's statement of claim to the notice of the defendants, even though the court proceedings had already received extensive media and social media attention. It appears that this priority outweighed considerations of (for example) costs and resources.
Interestingly, the evidence appears to suggest that the plaintiff had spent approximately HK$2.6 million in advertising the court proceedings and court orders in newspapers. It also appears that displaying the court documents at various conspicuous locations (102 in all) in and around the airport premises had required a team of about 16 people working long shifts over the course of four days.
Against this background, the plaintiff appealed that part of the court order which required the statement of claim and the order (two pages) to be published in newspapers and displayed so extensively across the airport island, on the basis that this was not proportionate in all of the circumstances.
The principal issues for determination by the High Court judge were whether the plaintiff should be:
The court noted that the court rules which provide for service of documents (that do not require personal service) allow for service "in such other manner as the Court may direct".(2) Where service by a conventional means is impracticable, the court could permit substituted service by an alternative means likely to bring the relevant court documents to the notice of the persons to be served.
Substituted service by means of advertisements placed in newspapers is a common means of effecting substituted service. However, the court noted that in a number of recent cases, involving a potentially large number of would-be defendants, substituted service by means of advertisements in newspapers had not been required – rather, substituted service had been effected by (for example) posting the documents in and around the subject premises or on government websites.(3)
The court also noted that effecting service, in appropriate circumstances, through the use of modern technology was becoming more accepted and was consistent with the objectives of the court rules and the court's responsibility to actively manage cases.(4)
While noting that each proposed means of substituted service was an alternative to a conventional means of service, and on each occasion substituted service had to be approved by the courts, the court stated as follows:
It seems to me that, in an appropriate case, the use of a QR code on publicly available or posted documents, linking the user of the QR code to the court documents on a website, is something which the Court can consider and encourage as an effective and proportionate way of achieving the aim of likely bringing the documents to the attention of those to whom attention is to be drawn. It will, of course, be necessary to ensure the sufficiently prominent display of a QR code with clear instructions for its use to access the relevant documents. This method may seem particularly suited to cases where there are large numbers of defendants or potential defendants, or where there is a significant volume of documentary material to be served.(5)
In coming to a decision to allow the plaintiff's appeal, the court appears to have been persuaded that the prominent use of social media by many of the persons involved in 2019's social unrest in Hong Kong showed that they possessed a certain technological prowess – therefore, it could reasonably be expected that the proposed means of substituted service (including widening the scope of the original order to allow for service using a QR code) was likely to be effective in bringing the court documents to the attention of the persons intended to be served.
On that basis, the court considered that effecting service of the plaintiff's statement of claim and the court order by publication in newspapers was duplicative and unnecessary, as was the requirement that they be displayed in full at conspicuous places across the airport island. Further, any incremental benefit in ordering a wider means of substituted service was disproportionate to the substantial costs and labour involved.
The court decided that it was enough that the plaintiff's statement of claim and subsequent court documents would be securely displayed in full at various entrances to and within the landside areas of the airport's Terminal 1 (where the protests had primarily taken place) – while the notices (as opposed to the full documents) would be securely exhibited at other conspicuous locations informing the public of the court proceedings, the injunction orders and the consequences of breach, prominently displaying a QR code with instructions on how to access the full documents on the plaintiff's website (where the court documents could be read in full).
On the facts, the court saw no rational basis for requiring a more onerous form of substituted service with respect to the plaintiff's statement of claim. Therefore, the court allowed the plaintiff's appeal.
Given the circumstances, the outcome of the appeal is not unexpected. It also suggests some creative lawyering, recognising that an appeal to a higher court might succeed on the basis that practicalities may in certain situations outweigh procedural niceties.
There is also the point that Hong Kong (like some other places) saw its fair share of protests and public disorder in 2019 and those who (for example) commit public or private nuisances should not expect any apparent anonymity to shield them from being given notice of court proceedings, together with all that that may entail.
In seeking orders for substituted service, it is normally enough for the plaintiff (eg, an owner or occupier of premises) to be able to show to the satisfaction of the court that it is reasonably expected that the proposed means of service will be sufficient to bring the documents to the attention of the defendants. This could include would-be defendants who may not yet come within the category of persons against whom the proceedings are directed but whose future actions become subject to an existing injunction if they commit a prohibited act.
Finally, some judges in Hong Kong appear mindful of the role that social media plays in society at large and associated technological advances and they are permitting parties to rely on this in certain civil proceedings. In the past year or so, novel orders have been made (for example) allowing parties to serve and disclose documents using data rooms(6) and to effect substituted service by publication on the webpages of government bodies.(7) While progress with the courts' IT strategy plan and integrated case management system has been frustratingly slow (it looks unlikely that they will be implemented before the second half of 2022), this has not stopped some judges embracing IT within the current court rules and framework.
For further information on this topic please contact Antony Sassi, Jason Carmichael or David Smyth at RPC by telephone (+852 2216 7000) or email (email@example.com, firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
(6) Hwang v Golden Electronics Inc  HKCFI 1084 and  HKCFI 1233. For further details please see "Novel method of service using data room".
(7) See, for example, Secretary for Justice v Persons Conducting Prohibited Acts  HKCFI 2785. For further details please see "Court continues injunction against unidentified 'doxxers'".
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